Mayer Brown's Appellate.net

DEFAMATION AND "HOT NEWS"

by John M. Touhy and Jeffrey W. Sarles *


A year ago, the Atlanta Journal-Constitution learned that Richard Jewell was a suspect in the July 27, 1996, bombing of Centennial Olympic Park. The Journal-Constitution wasted no time in running the story, issuing a special extra edition on the afternoon of July 30 reporting that the FBI had focused its investigation on Mr. Jewell, a security guard working in the park, who previously had been portrayed as a hero for finding the knapsack containing the bomb.

Based on FBI and police leaks and unsubstantiated remarks from former employers and acquaintances, the initial article portrayed Mr. Jewell as having a checkered employment history and an aberrant personality. The story claimed, among other things, that Mr. Jewell "fits the profile of the lone bomber," one that "generally includes a frustrated white man who is a former police officer, member of the military or police 'wannabee' who seeks to become a hero."

The article further stated that Mr. Jewell had approached newspapers "seeking publicity" for his discovery of the bomb.

Follow-up stories in the Journal-Constitution and other news sources reported that the FBI was about to arrest Mr. Jewell. The FBI investigation was ultimately called off, and Mr. Jewell sued the Journal-Constitution and other news organizations for libel.

The Jewell case highlights an important issue in many media defamation cases: the media's need to act quickly in the face of a breaking story. If the Journal-Constitution had delayed its stories to verify all the details of Mr. Jewell's history, it also would have delayed informing the public of the FBI investigation of the bombing — and risked being scooped by rival media.

At the same time, however, responding rapidly to breaking news could escalate the risk of inaccuracies.

Hot News in the Supreme Court

"Hot news," and the role it plays in defamation cases, has been recognized by the U.S. Supreme Court. Three decades ago, in the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, (1) the Supreme Court addressed the importance of considering time pressures in adjudicating defamation claims.

Butts involved a magazine feature story with no deadline pressure, about an alleged fix of a college football game by a well-known coach. Walker involved an on-the-scene reporter's coverage of a "massive riot" allegedly instigated by a prominent retired general.

Both cases involved public-figure plaintiffs who, a plurality of the Court held, could recover on a showing of gross negligence by the publishers. The Court found for the plaintiff in Butts, but not in Walker, distinguishing between the subject matter involved in Butts, which "was in no sense 'hot news,'" and that in Walker, in which the circumstances imposed a "necessity for rapid dissemination."

Chief Justice Earl Warren, in a concurrence, presaged the subsequent and current view of the court by reaching the same result under the actual-malice standard of New York Times Co. v. Sullivan. (2) Presumably then, the Court today would find the presence or absence of hot news to be a factor as to whether, in a case involving a public-figure plaintiff, the defendant acted with actual malice — knowledge or recklessness — in publishing the challenged story. In fact, in Masson v. New Yorker Magazine, Inc., the court recognized that a failure to investigate is more likely to support a finding of malice when one is not "working under a tight deadline" or in a case involving hot news. (3)

When Is News "Hot"?

As an initial matter, the question of what constitutes hot news is not always clear. It was easy enough for the Supreme Court to identify the riot in Walker as hot news, as opposed to the magazine feature story in Butts. But is every breaking story necessarily hot news?

When a story is otherwise less than hot, some courts have found the danger of being scooped sufficient to justify a hot news analysis. Others look only to the inherent urgency of the report and reject the relevance of rivalry among media outlets.

Perhaps, at the risk of over-theorizing, hot news may be defined as a breaking story for which the additional costs of verification would outweigh the costs of delaying publication. Under any test, however, it would be hard to deny that the information about the suspect status of Richard Jewell received by the Atlanta Journal-Constitution on July 30 constituted hot news.

The fact that what is purported to be a defamatory report is hot news may affect a court's analysis of defamation in several respects. In particular, it may affect whether the media defendant's conduct rises to the necessary level of fault — actual malice or negligence — and whether a privilege applies to shield the media defendant.

Private or Public Figure

The most likely element of a defamation analysis to be affected by the presence of hot news is fault — whether the defendant's publication constituted actual malice or negligence, or some other standard of fault. In most instances, the level of fault at issue will depend on whether the plaintiff is deemed a private or a public figure.

Only rarely would the subject of hot news be deemed what the courts call an "all-purpose" public figure, that rare personage of "pervasive fame or notoriety." (4) A more likely characterization would be that of a "limited purpose" public figure: an individual who "voluntarily injects himself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues." (5)

Courts often use a multi-factor analysis to determine the plaintiff's status, looking at the extent to which the plaintiff's participation in the controversy was voluntary, the extent to which the plaintiff has access to channels of effective rebuttal, and the prominence of the role played by the plaintiff.

The presence of hot news may be an additional factor to be urged to a court in making a public-figure evaluation. Few courts have found such an argument to be persuasive, however.

Defendant's Fault

The plaintiff's burden of proving fault would tend to provide the most fertile ground for hot-news arguments. As the California Supreme Court once stated, "reports of 'hot news'" are "[p]articularly deserving of First Amendment protection" because there is "a greater need for constitutional protection" when "deadlines must be met and quick decisions made." (6)

Actual Malice and Hot News

The presence or absence of hot news can play an important role in determining whether a defendant's conduct rises to the level of actual malice. Courts have inferred knowledge or recklessness from the failure to investigate or to verify information used in a news report. The identification of a report as hot news can help defeat such an inference.

In the absence of hot news, for example, the failure to investigate obvious sources of corroboration may, in some circumstances, be so suspicious as to create an inference of serious doubts. But when a breaking story imposes pressing deadlines, such an inference may be unreasonable. Where the public demands rapid dissemination, extensive verification procedures may be impracticable.

Thus, courts have refused to infer actual malice in what otherwise might be suspicious circumstances when the defendant was faced with "a fast breaking news story with looming deadlines," (7) or relied on inaccurate wire service reports of breaking news. (8) The rationale is that lack of time may undermine any inference that the defendant seriously doubted the truth of the reported information.

The inverse of this principle has been widely recognized in cases that did not involve hot news.

Thus, when Howard Hunt sued the Liberty Lobby for tying him to the assassination of President Kennedy, the 11th U.S. Circuit Court of Appeals reasoned that a paper's grossly inadequate investigation may suggest actual malice "when an article is not in the category of 'hot news,' that is, information that must be printed immediately or it will lose its newsworthy value." (9) And a newspaper article stating that a coal mining union official had been ferried around the region in a coal company helicopter on election day was found to be actual malice in part because it was published four days after the election. As the state court put it, this was not "a situation where the report was a 'hot news' item and the need for immediate publication precluded attempts at verification of all questionable information." (10)

Some courts have maintained that the absence of hot news should not be a significant factor in an actual-malice inquiry, but even these courts often use that absence to negate a defendant's excuse for failing to investigate or verify a story. By the same token, defendants should be able to use the presence of hot news as evidence to counter contentions of actual malice.

Negligence and Hot News

The urgency of reporting hot news may be as significant a consideration in the inquiry into negligence as it is for actual malice. According to the Restatement (2d) of Torts, whether a story is "a matter of topical news requiring prompt publication to be useful," as opposed to "one in which time and opportunity were freely available to investigate," should be an important factor in a negligence inquiry. (11)

Moreover, the hot-news context suggests that the negligence standard should be that of a "reasonable person confronted with a breaking story" instead of the mere reasonable-person standard.

The Jewell case featured numerous circumstances that might create an inference of negligence on the part of the media: The source of the information that Mr. Jewell was under investigation may not have been reliable; the quotations attributed to his former employer about his past overzealousness may have been unverified; and the information initially may not have been supported by the issuance of a search warrant, arrest or official confirmation that Mr. Jewell was a suspect. Normally in these instances, a red flag would go up and signal a need for caution. Yet the reports that investigators into the Centennial Park bombing had focused on a suspect undeniably constituted hot news, a significant and potentially determining factor that could negate any inference of fault on the part of the media.

Privileges

The presence of hot news may also affect the analysis of privileges invoked by the defendant. Media defendants are likely to claim a neutral reporting privilege, maintaining that disinterested reporting about an accusation of a serious nature, which of itself is newsworthy, is privileged, perhaps constitutionally so. (12) This privilege is widely recognized, but it is not available in some jurisdictions — such as Michigan — and in others it may not apply to private-figure plaintiffs.

In addition, a number of state-law conditional privileges may be available, depending on the circumstances and jurisdiction. In the Jewell case, for example, a media defendant might claim a privilege to report actions by public officials; a privilege to report official or judicial proceedings or records, which, however, may not apply to an arrest; a privilege based on the public interest in violations of the law; or a privilege of "fair comment," the right of a citizen or reporter to comment on matters of public importance so long as there is no malicious intent to damage another's reputation. All of these privileges are limited, and the publisher must take care not to appear to adopt the reported charges as its own.

The hot-news context may expand the scope of these privileges. In general, they represent an appreciation of and protection for the public dissemination of information on which robust public commentary depends.

If they are to serve their purpose under circumstances in which such dissemination must be swift if it is to be meaningful, courts should factor in the constraints on investigation and verification imposed on the media when confronted with a breaking story. That same rationale would support requiring plaintiffs who seek to overcome conditional privileges in hot-news cases to bear a heavier burden of proof on the necessary showing of common-law malice — in the sense of ill-will — on the part of media defendants.

Policy Considerations

More than three decades ago, the D.C. Circuit noted that newspapers' verification of information can be very costly and even impossible, and that rigid verification requirements may jeopardize their economic survival in a business "where news quickly goes stale." (13) The level of accuracy generally expected in media stories often is not practicable while the news is breaking. Investigation and verification are time-consuming and in many cases news not reported immediately will not remain news.

In the case of the broadcast media, coverage often is live or almost instantaneous, forcing an on-the-scene reporter or even a camera operator to make broadcast decisions. In the case of the print media, for which missing a deadline with a story coming in over the wire could mean the loss of the story until the next day, the usual checking and editing process may have to be sacrificed.

As one court pointed out, "[F]ew newspaper reporters are lawyers; yet they must often report under a short deadline complex accusations and arguments in colloquial language that the average reader can understand." (14) Under such circumstances, their failure to investigate or verify is not necessarily evidence of their lack of concern for the truth of the report.

Defamation law balances the media's duty to be accurate with their freedom and responsibility to report the news to the public. "[S]ome public misstatements must be tolerated by each of us in order that the freedoms be maintained for all of us." (15)

The importance of accuracy is often balanced against the costs of delay. If part of such freedom is the right to disseminate breaking news to the public quickly, there is precedent for courts to weigh in that balance the pressure to publish immediately.

Representatives of the news media could argue that accounting for the "hotness" of news would serve the public interest in several ways. Publicity about an ongoing investigation, for example, not only meets the public hunger for immediate information, but also informs the public about law enforcement procedures and provides the public with an opportunity to participate, by, for example coming forward with its own information that verifies or belies the published story.

Moreover, the media could argue that if they had to hold off on reporting hot news until all facts were investigated and verified, the defining vitality of American news would be lost. Extending a larger umbrella to protect the immediate coverage of breaking news would guard against the degeneration of news into the vapidity of reporting typical of the former Soviet Union where, for example, the public at first heard nothing about the nuclear disaster at Chernobyl and then was spoon fed careful statements about "a minor accident."

Of course, a hot-news defamation standard must not become a license for negligence or worse.

Such a concern was expressed by the D.C. Circuit in Tavoulareas v. Washington Post, in which the court rejected fear of a scoop by rivals as justification for less careful publication. The court reasoned that allowing "self-generated time pressure — the fear that someone else will pre-empt the 'scoop'" — to excuse defamatory reporting would "reward the least responsible journalists, permitting them regularly to scoop their more careful colleagues, making the scoop itself the justification for their recklessness and generally debasing the journalistic coinage." (16)

But courts can deter such gaming by ensuring that the story really is hot news. The fact that a report is published immediately does not prove that it was hot; rather, only if the nature of the material and the circumstances of its receipt and publication support such a designation should the time pressure be a consideration.

Courts routinely make such contextual determinations. For example, the 7th Circuit, on remand in the Gertz v. Robert Welch Inc., affirmed a punitive damages award when the editor had reduced the usual editorial lead-time from several weeks to a few hours, not because hot news was involved but simply because of an "editorial preference" to get the defamatory article into the current issue. (17)

Conclusion

Hot news can be an important consideration in media defamation cases. Its impact should mirror the vital role it plays in today's news gathering and reporting. So long as hot news plays an integral role in news coverage, it should be taken into account when news coverage is challenged. Appropriate legal protection for the reporting of hot news can enhance the quality of news coverage without detracting from the media's responsibility to provide accurate and reliable information.



* John Touhy is a litigation partner and Jeffrey Sarles a litigation associate at Chicago's Mayer, Brown & Platt. Return to Top

1. 388 U.S. 130 (1967). Return to Article

2. 376 U.S. 255 (1964). Return to Article

3. 501 U.S. 496, 521 (1991). Return to Article

4. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Return to Article

5. Id. at 344-46. Return to Article

6. Briscoe v. Reader's Digest Association, 93 Cal. Rptr. 866, 870 (Cal. 1971). Return to Article

7. Gonzales v. Hearst Corp., 930 S.W.2d 275, 284 (Tex. App. 1996). Return to Article

8. See Ripps v. Gannett Co., 1993 WL 209617, at *6 (S.D. Ala. 1993), aff'd without op., 24 F.3d 254 (11th Cir. 1994). Return to Article

9. Hunt v. Liberty Lobby, 720 F.2d 631, 643 (11th Cir. 1983). Return to Article

10. Savitsky v. Shenandoah Valley Publishing Corp., 566 A.2d 901, 904-05 (Pa. Sup. 1989). Return to Article

11. Restatement (2d) of Torts Sec. 580 comment. h. at 228 (1977). Return to Article

12. See, e.g., Gist v. Macon County Sheriff's Dept., 671 N.E.2d 1154, 1163 (Ill. App. 1996). Return to Article

13. Washington Post Co. v. Keogh, 365 F.2d 965, 972 (D.C. Cir. 1966). Return to Article

14. Orr v. Argus-Press Co., 586 F.2d 1108, 1117 (6th Cir. 1978). Return to Article

15. O'Donnell v. Field Enters., 491 N.E.2d 1212, 1217 (Ill. App. 1986). Return to Article

16. 759 F.2d 90, 131 n.50 (D.C. Cir. 1985). Return to Article

17. 680 F.2d 527, 538 (7th Cir. 1982). Return to Article




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